Citation Nr: 1431360
Decision Date: 07/11/14 Archive Date: 07/15/14
DOCKET NO. 10-11 707 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California
THE ISSUE
Entitlement to service connection for a sleep disorder.
REPRESENTATION
Appellant represented by: California Department of Veterans Affairs
ATTORNEY FOR THE BOARD
J. Chapman, Associate Counsel
INTRODUCTION
The appellant is a Veteran who served on active duty from June 1977 to June 2005. This matter is before the Board of Veterans' Appeals (board) from a May 2008 rating decision of the San Diego, California Department of Veterans Affairs (VA) Regional Office (RO). In his March 2010 substantive appeal, the Veteran requested a hearing before the Board. He failed to appear for a Travel Board hearing scheduled in June 2013. Accordingly, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.702(d). In August 2013, the Board remanded this case for additional development. In December 2013, the RO awarded service connection for disabilities of both knees and both feet, and for prostate hypertrophy; a May 2014 rating decision awarded service connection for varicose veins. Accordingly, these matters are no longer before the Board.
The appeal is being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
The Veteran contends that he developed symptoms of a sleep disorder in service, which are related to his subsequent diagnosis of obstructive sleep apnea (OSA). In August 2013, the Board remanded the case, in part, for an examination to secure a medical opinion as to whether the Veteran has a sleep disorder related to his service. On November 2013 VA examination, the examiner noted that sleep apnea has been diagnosed since April 2008 and opined that current OSA is less likely than not related to active duty service. This does not include adequate explanation of rationale, and is therefore inadequate for rating purposes. Consequently, a remand to secure an adequate nexus opinion is necessary. See Barr v. Nicholson, 21 Vet. App. 303 (2007).
Accordingly, the case is REMANDED for the following:
1. Secure for the record (with the Veteran's assistance by providing identifying information and any releases necessary) copies of the complete updated records of all treatment he has received for a sleep disorder to date.
2. Thereafter, arrange for the Veteran to be examined by another appropriate physician to determine the likely etiology of his OSA. The entire record must be reviewed by the examiner in conjunction with the examination.
Based on a review of the record and examination of the Veteran, the examiner should opine whether the Veteran's diagnosed OSA is at least as likely as not (a 50% or better probability) related to his service, to include his reports of frequent trouble sleeping noted therein.
The examiner must explain the rationale for the opinion, citing to supporting factual data/medical literature, as deemed indicated.
3. Then, review the record and readjudicate the claim of service connection for a sleep disorder. If it remains denied, issue an appropriate supplemental statement of the case and afford the Veteran and his representative opportunity to respond. The case should then be returned to the Board, if in order, for further review.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).